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Previously to the reign of Heniy VIII., when the Ancicntij- a
Statute of Uses (a) was passed, a simple gift of lands ^\ ^^l^^^ wir^
to a person and his heirs, accompanied by livery of ^•ll that was

. . , necessary for a

seism, was all that was necessary to convey to that conveyance.
person an estate in fee simple in the lands. The courts
of law did not deem any consideration necessary; but if
a man voluntarily gave lands to another, and put him
in possession of them, they held the gift to be complete
and irrevocable ; just as a gift of money or goods, made
without any consideration, is, and has ever been, quite
beyond the powder of the giver to retract it, if accom-
panied by delivery of possession (i). In laAv, therefore,
the person to whom a gift of lands was made, and seisin
delivered, Avas considered thenceforth to be the true
owner of the lands. In equity, however, this was not Tn equity a
always the case ; for the Court of Chancery, administer- pleyaii^^i^ ^^ °
ing equity, held that the mere delivery of the possession
or seisin by one person to another Avas not at all con-
clusive of the right of the feoffee to enjoy the lands of
Avliich he was enfeoffed. Equity was unable to take
from him the title which he possessed, and could always
assert in the courts of law ; but equity could and did
compel him to make use of that legal title, for the
benefit of any other person Avho might have a more
righteous claim to the beneficial enjoyment. Thus if a
feoffment was made of lands to one person for the benefit
or to the use of another, such person Avas bound in con-
science to hold the lands to the use or for the benefit of

(«) 27 Ilcn. V.m. c. 10. (/y) 2 Black. Com. HI.



15G OF CORrOKEAL HEREDITAMENT??.

tlie other accortliiigl y ; so that while the title of the
person enfeoffed was good in a court of law, yet he
derived no benefit from the gift, for the Court of Chan-
cery obliged him to hold entirely for the use of the
other for whose benefit the gift was made. This device
was introduced into England about the close of the
reign of Edward III. by the foreign ecclesiastics, who
contrived by means of it to evade the statutes of mort-
main, by which lands were prohibited fi-om being given
for religious })urposcs; for they obtained grants to
persons to tJie use of the religious houses ; which grants
the clerical chancellors of those days held to be bind-
ing (c). In process of time, such feoffments to one
person to the use of another became very common ; for
the Court of Chancery allowed the use of lands to be
disposed of in a variety of ways, amongst others by
will (f/), in Avhich a disposition could not then be made
FeofTmcnt to of the lands themselves. Sometimes persons made
feoffor fcoffmeuts of lands to others to the use of themselves

the feoffors ; and when a person made a feoffment to a
stranger, without any consideration being given, and
without any declaration being made for Avhose use the
feoffment should be, it was considered in Chancery that
it must have been meant by the feoffor to be for his own
use (e). So that though the feoffee became in laio
absolutely seised of the lauds, yet in equity he was held
to be seised of them to the use of the feoffor. The
Court of Chancery paid no regard to that implied con-
sideration, which the law affixed to every deed on
account of its solemnity, but looked only to Avhat
actually passed between the parties ; so that a feoffment
accompanied by a deed, if no consideration actually

{e) 2 Black. Com. 328; 1 Sand. Uses, 65, GS, 69 (64, 67, 68, 5th

Uses, 16 (15, oth ed.) ; 2 Ton- ed.) ; 2 Black. Com. 329; ante,

blanque on Equity, 3. p. 63.

(<Z) Perkins, ss. 496, 528, 537; («-) Perkins, s. 533; 1 Sand,

Wright's Tenures, 174; 1 Sand. Uses, 61, 5th ed.; Co. Litt. 271 b.



OF USES AND TRUSTS. 157

passed, was held to be made to the use of the feoffor,
just as a feoffment bj mere parol or word of mouth.
If however there was any, even the smallest, considera-
tion given by the feoffee (/), such as five shillings, the
presumption that the feoffment Avas for the use of the
feoffor was rebutted, and the feoffee was held entitled to
his own use.

Transactions of this kind became in time so frequent
that most of the lands in the kingdom were conveyed
to uses " to the utter subversion of the ancient com-
mon laws of this realm" (<7). The attention of the
legislature was from time to time directed to the public
inconvenience to which these uses gave rise ; and after
several attempts to amend them (Ji), an act of parliament
was at last passed for their abolition. This act is no Tbe Statute of
other than the Statute of Uses(z), a statute which still ^^^'
remains in force, and exerts at the present day a most
important influence over the conveyance of real property.
By this statute it was enacted, that where any person
or persons shall stand seised of any lands or other here-
ditaments to the use, confidence or trust of any other
])erson or persons, the persons that have any such use,
confidence or trust (by which was meant the persons
beneficially entitled) shall be deemed in lawful seisin
and possession of the same lands and hereditaments for
such estates as they have in the use, ti'ust or confidence.
This statute was the means of effecting a complete
revolution in the system of conveyancing. It is a
curious instance of the power of an act of parliament ;
it is in fact an enactment that what is given to A. shall,
under certain circumstances, not be given to A. at all,

(/) 1 Sand. Uses, G2 (61, oth III. c. 1, enabling the cestui que

ed.). use, or person beneficially entitled,

(g) Stat. 27 Hen. VIII. c. 10, to convey the possession without

preamble. the concurrence of his trustee.

(A) See particularly Stat. 1 Rich. (/) 27 Hen. VIII. c. 10.



158



or CORPOliEAL HEREDITAMENTS.



Eeoffment to
A. and his

heirs to the iixc
of B. and his
heirs.



Feoffment
without con-
sideration.



Kesultinp; use.



but to somebody else. For suppose a feofFment be now
made to A. and his heirs, and the seisin duly delivered
to him; if the feofFment be expressed to be made to
him and his heirs to the use of some other person, as
B. and his heirs, A. (who would, before this statute,
have had an estate in fee simple at law) now takes no
jjermanent estate, but is made by the statute to be
merely a kind of conduit pipe for conveying the estate
to B. For B. (who before Avould have had only a use
or trust in equity) shall noAV, haviny the use, be deemed
in lawful seisin and possession ; in other words, B. now
takes, not only the beneficial interest, but also the
estate in fee simple at law, which is wrested from A.
by force of the statute. Again, suppose a feofFment
to be now made simply to A. and his lieirs Without any
consideration. We have seen that before the statute
the feoffor would in this case have been held in equity
to have the use, for want of any consideration to pass
it to the feoffee ; now, therefore, the feoffor, having the
use, shall be deemed in lawful seisin and possession ;
and consequently, by such a feofFment, although livery
of seisin be duly made to A., yet no permanent estate
will pass to him ; for the moment he obtains the estate
he holds it to the use of the feoffor; and the same in-
stant comes the statute, and gives to the feoffor, who
has the use, the seisin and possession (Jt). The feoffor,
therefore, instantly gets back all that he gave ; and the
use is said to result to himself. If however the feofF-
ment be made unto and to the use of A. and his heirs —
as, before the statute, A. would have been entitled for
his own use, so now he shall be deemed in lawful seisin
and possession, and an estate in fee simple will effectually
pass to him accordingly. The propriety of inserting,
in every feofFment, the words to the use of, as well as to
the feoffee, is therefore manifest. It appears also that



(/■) 1 Sand. Uses, ',);), lOO (l).", 5th cd.)-



OF USES AND TRUSTS. 159

an estate in fee simple may be efFectually conveyed to a
person by making a feoffment to any other person and
his heirs, to the use of or upon confidence or trust for
such former person and his heirs. Thus, if a feoffment
be made to A. and his heirs, to the use of B. and his
heirs, an estate in fee simple will now pass to B., as
effectually as if the feoffment had been made directly
unto and to the use of B. and his heirs in the first
instance. The words to the use of are now almost
universally employed for such a purpose ; but " upon
confidence," or "upon trust for," Avould ansAver as well,
since all these expressions are mentioned in the statute.

The word trust, however, is never employed in Trusts.

modern conveyancing, when it is intended to vest an

estate in fee simple in any person by force of the

Statute of Uses. Such an intention is always carried

into effect by the emplojinent of the word use; and the

word trust is reserved to signify a holding by one person

for the benefit of another similar to that(/), which,

before the statute, was called a use. For, strange as it Trusts still

may appear, with the Statute of Uses remainins; un- exist notwith-
•^ J- J- ' _ o standing the

repealed, lands are still, as everybody knows, frequently Statute of
vested in trustees, who have the seisin and possession in
law, but yet have no beneficial interest, being liable to
be brought to account for the rents and profits by means
of the Court of Chancery. The Statute of Uses Avas
evidently intended to abolish altogether the jurisdiction
of the Court of Chancery over landed estates (m), by
giving actual possession at laAv to every person bene-
ficially entitled in equity. But this object has not been
accomplished; for the Court of Chancery soon regained
in a curious manner its former ascendancy, and has kept
it to the present day. So that all that was idtimately

{V) But not the same, 1 Sand. O'O CUudlcigVs case, 1 Kep.

Uses, 2GG (278, 5th ed). 124, 125,



of Judicature
Act.



160 OF COEPOEEAL IIEEEDITAMENTS.

effected by the Statute of Uses, was to import into the
rules of Law some of the then existing doctrines of the
Courts of Equity {n), and to add three Avords, to the use,
Supreme Court to every conveyance (o). The Supreme Court of Judi-
cature Act, 1873 (/;), now provides ((/) for the transfer
of the jurisdiction of all the Courts botli of law and
equity to the High Court of Justice thereby esta-
Eulesof blished ; and it enacts (r) that in all matters, not

prevail "°^ *^° therein particularly mentioned, in which there is any
conflict or variance between the rules of equity and the
rules of the common law with reference to the same
matter, the rules of equity shall prevail.

The manner in which the Court of Chancery re-
gained its ascendancy Avas as follows. Soon after the
passing of the Statute of Uses, a doctrine was laid
down, that there could not be a use upon a use {s).
No nsc upon For instance, suppose a feoffment had been made to A.
and his heirs, to the use of B. and his heirs, to the use
of C. and his heirs ; the doctrine Avas, that the use to C.
and his heirs Avas a use upon a use, and was therefore
not affected by the Statute of Uses, which could only
execute or operate on the use to B. and his heirs. So
that B. and not C. became entitled, under such a feoff-
ment, to an estate in fee simple in the lands comprised
in the feoffment. This doctrine has much of the
subtlety of the scholastic logic Avhich Avas then preva-
lent. As Mr. Watkins says(^), it must have surprised
every one, Avho Avas not sufficiently learned to have lost
his common sense. It Avas hoAvever adopted by the
courts and is still laAv. Even if the first use be to the

(re) 2 Fonb. Eq. 17. by stat. 37 & 38 Vict. c. 83.

(o) See Hupldns v. Hoplilns, 1 (</) Sects. 16, 17, 18.

Atk. 591; 1 Sand. Uses, 2G5 (277, (r) Sect. 25, subsection (11).

5th ed.). (.?) 2 Black. Com. 345.

(p) Stat. 30 & 37 Vict. c. Hfi, {f) Princi]iles of Conveyancing,

postponed to 1st November, 1875, Introduction.



a use.



OF USES AND TEUSTS. 1 G 1

feoffee himself, In wlilcli case lie takes by the common
law (u), no subsequent use will be executed, and the
feoffee will take the fee simple ; thus, under a feoflftnent
unto and to the use of A. and his heirs, to the use of
C. and his heirs, C. takes no estate in law, for the
use to him is a use upon a use ; but the fee simple vests
in A. to whom the use is first declared (x). Here then Chancery in-
was at once an opportunity for the Court of Chancery
to interfere. It Avas manifestly inequitable that C, the
party to whom the use was last declared, should be de-
prived of the estate, which was intended solely for his
benefit; the Court of Chancery, therefore, interposed
on his behalf, and constrained the party, to whom the
law had given the estate, to hold in trust for him to
whom the use was last declared. Thus arose the
modern doctrine of uses and trusts. And hence it is,
that if it is now wished to vest a fi.-eehold estate in one
person as trustee for another, the conveyance is made
unto the trustee, or some other person (it is immaterial
which), and his heirs, to the use of the trustee and his
heirs, m trust for the party intended to be benefited
(called cestui que trust) and his heirs. An estate in
fee simple is thus vested in the trustee, by force of the
Statute of Uses, and the entire beneficial interest is
given over to the cestui que trust by the Court of
Chancery. The estate in fee simple, which is vested in Legal estate,
the trustee, is called the lerj/al estate, being an estate, to
which the trustee is entitled, only in the contemplation
of a court of laiv, as distinguished from equity. The
interest of the cestui que trust is called an equitable Equitable
estate, being an estate to which he is entitled only in ^^ ^ "
the contemplation of the Court of Chancery, which ad-
ministers equity. In the present instance, the equitable
estate being limited to the cestui que trust and his

(m) Doe d. Lloyd v. Passing- (a*) I)oe d. Lloyd y. Passing-

ham, G Bam. & Cres. 305, 317; ham, nil supra.
Orme's case, L. R., 8 C. P. 281.

li.P. M



162



OF CORPOEEAL HEREDITAMENTS.



Estates in
equity.



Modern Chan-
cery different
to ancient.



heirs, he has an equitable estate in fee simple. He is
the beneficial owner of the property. The trustee, by
virtue of his legal estate, has the right and power to
receive the rents and profits ; but the cestui que trust
is able, by virtue of his estate in equity, at any time to
oblige his trustee to come to an account, and hand over
the whole of the proceeds.

We have now arrived at a very prevalent and im-
portant kind of interest in landed property, namely, an
estate in equity merely, and not at law. The owner of
such an estate has no title at all in any court of law, but
must have recourse exclusively to the Court of Chancery,
where he will find himself considered as owner, accord-
ing to the equitable estate he may have. Chancery in
modern times, though in principle the same as the
ancient court which first gave effect to uses, is yet
Avidely diflferent in the application of many of its rules.
Thus we have seen (//) that a consideration, however
trifling, given by a feoffee, was sufficient to entitle him
to the tise of the lands of which he was enfeoffed. But
the absence of such a consideration caused the use to
remain with, or more technically to result to, the feoffor,
according to the rules of Chancery in ancient times.
And this doctrine has now a practical bearing on the
transfer of legal estates ; the ancient doctrines of Chan-
cery having, by the Statute of Uses, become the naeans
of determining the owner of the legal estate, whenever
USES are mentioned. But the modern Court of Chan-
cery takes a wider scope, and will not withhold or grant
its aid, according to the mere payment or non-payment
of five shillings : thus, circumstances of fraud, mistake,
or the like, may induce the Court of Chancery to re-
quire a gi-antee under a voluntary conveyance to hold
merely as a trustee for the grantor ; but the mere want
of a valuable consideration would not now be con-



(//) Ante, p. i;



OF USES AND TRUSTS. 1G3

sidered by that Court a sufficient cause for its inter-
ference {z).

B J the recent act to confer on the County Courts a County Courts.
limited jurisdiction in equity, it is enacted, amongst
other things, that these courts shall have and exercise
all the power and authority of the High Court of Chan-
cery in all suits for the execution of trusts in which
the trust estate or fund shall not exceed in amount or
value the sum of five himdred pounds (o). This act
came into operation on the first of October, 1865 (i).

In the construction and regulation of trusts, equity is Equity follows
said to follow the law, that is, the Court of Chancery
generally adopts the rules of law applicable to legal
estates (c); thus, a trust for A. for his life, or for him Equitable
and the heirs of his body, or for him and his heirs, will ^^^ ^^ ^^'[j
give him an equitable estate for life, in tail, or in fee
simple. An equitable estate tail may also be barred, in
the same manner as an estate tail at law, and cannot be
disposed of by any other means. But the decisions of
equity, though given by rule, and not at random, do not
follow the law in all its ancient technicalities, but pro-
ceed on a liberal system, correspondent with the more
modern origin of its power. Thus, equitable estates in
tail, or in fee simple, may be conferred without the use
of the words heirs of the bod//, or heirs, if the intention
be clear : for, equity pre-eminently regards the intentions
and agreements of parties ; accordingly, words which at
law would confer an estate tail, are sometimes construed
in equity, in order to further the intention of the parties,
as giving merely an estate for life, followed by separate
and independent estates tail to the children of the

(z) 1 Sand. Uses, 334 (865, 5tli Vict. c. 142.
ed.). (h) Sect. 23.

(a) Stat. 28 & 29 Vict. c. 99, (o) 1 Sand. Uses, 2G9 (280, 5th

s. 1, amended by stat. 30 & 31 ed.).

M 2



164



OF CORPOREAL HEREDITAMENTS.



Equitable
estate tail in
lands to be
purchased.



Equitable
estate in fee
simple.



donee. This construction is frequently adopted bj
equity in the case of marriage articles, Avhere an inten-
tion to provide for the children might otherwise be de-
feated by vesting an estate tail in one of the parents,
who could at once bar the entail, and thus deprive the
children of all benefit {d). So if lands be directed to
be sold, and the money to arise fi-om the sale be directed
to be laid out in the purchase of other land to be
settled on certain persons for life or in tail, or in any
other manner, such persons will be regarded in equity
as already in possession of the estates they are intended
to have : for, whatever is fully agreed to be done, equity
considers as actually accomplished. And in the same
manner if money, from whatever source arising, be
directed to be laid out in the purchase of land to be
settled in any manner, equity will regard the persons on
whom the lands are to be settled as already in the pos-
session of their estates (e). And in both the above
cases the estates tail directed to be settled may be barred,
before they are actually given, by a disposition duly
enrolled, of the lands which are to be sold in the one
case, or of the money to be laid out in the other (y).
Again, an equitable estate in fee simple immediately
belongs to every purchaser of freehold property the
moment he has signed a contract for purchase, provided
the vendor has a good title (^) ; and it is understood
that the whole estate of the vendor is contracted for,
unless a smaller estate is expressly mentioned, the em-
ployment of the word heirs not being essential (A).
If, therefore, the purchaser were to die intestate the
moment after the contract, the equitable estate in fee
simple, Avhicli he had just acquired, would descend to

(d) 1 Sand. Uses, 311 (337, 5tli
ed.); Watkins on Descents, 168
(214, 4th ed.).

(^0 1 Sand. Uses 300 (324, 5th
ed.).

(/) Stat. 3&4Will. IV.C.74,
Bs. 70, 71, rcpc^aling stat. 7 Geo.



IV. c. 45, which repealed stat. 39
& 40 Geo. III. c. 56.

(g) Sugd. Vend. & Pur. 146
(1G2, 13th ed.).

(/i) BoTver v. Cooper, 2 Hare,
408.



OF USES AND TRUSTS. 1 65

his heir at law, wlio would have a right (to be enforced
in equity) to have the estate paid for out of the money
and other personal estate of his deceased ancestor ; and
the vendor would be a trustee for the heir, vmtil he
should have made a conveyance of the legal estate, to
which the heir Avould be entitled. Many other examples
of equitable or trust estates in fee simple might be
furnished.

An equitable estate in fee will not escheat to the lord No escheat of
upon failure of heirs of the cestui que trust (i) ; for a ^ *''"^*^ ^^^^*^-
trust is a mere creature of equity, and not a subject of
tenure. In such a case, therefore, the trustee will hold
the lands discharged from the trust which has so failed ;
and he will accordingly have a right to receive the
rents and profits without being called to account by any
one. In other words, the lands will thenceforth be his ^/
own {k). But previously to the Naturalization Act, Trust for
1870 (/), it was held that if lands were purchased by a ^ ^^°"
natural-born subject in trust for an alien (m), the crown
might claim the benefit of the purchase (w); although,
if lands were directed to be sold, and the produce given
to an alien, the crown had then no claim (o). But, Naturalization
as we have seen(/?), the Naturalization Act, 1870, now '
provides that real and personal property of every de-
scription may be taken, acquired, held and disposed of
by an alien in the same manner in aU respects as by
a natural-born British subject ; and a title to real and
personal property of every description may be derived

(i) 1 Sand. Uses, 288 (302, 5th (w) See ante, p. 64.

ed.). {n) Barrow v. Wadldn, 24

(li) Burgess v. Wheate, 1 Wm. Beav. 1 ; Sharp v. St. Sauveur,

Black. 123; 1 Eden, 177; Taylor L. R, 7 Ch. Ap. 343; oren-uling

v. Haygarth, 14 Sim. 8 ; Davall Rittson v. Stordy, 3 Sm. & Giff.

V. New River Company, 8 De 230.

Gex & Smale, 394; Beale y. Sy- {o) Bn. Hourmelin v. Sheldon,

monds, 16 Beav. 406, 1 Beav. 79; 4 My. & Cr. 525.

(0 Stat. 33 Vict. c. 14. 00 Ante, p. 66.



166



OF CORPOREAL HEREDITAMENTS.



Treason.



through, from or in succession to an alien in the same
manner in all respects as through, fr'ora or in succession
to a natural-born British subject (q). In the event of
high treason being committed by the cestui que trust
of an estate in fee simple, it was the better opinion that
his equitable estate would be forfeited to the crown (r).
But, as we have seen (5), all forfeitures for treason are
now abolished (t). By a statute of the present reign (u),
both the lord's right of escheat, and the crown's right
of forfeiture, had already been taken away in the case of
the failure of heirs or corruption of blood of the trustee,
except so far as he himself might have any beneficial
Legal estate of interest in the lands of which he was seised (x). And
vests ^nWs*^*^^ now, as we have already seen ( y), on the death of a bare
legal personal trustee the legal estate in fee vested in him vests in his
legal personal representative from time to time {z).



Failure of
heirs of
trustee.



Descent of an
equitable

estate.



The descent of an equitable estate on intestacy follows
the rules of the descent of legal estates ; and, therefore,
in the case of gavelkind and borough-English lands,
trusts affecting them will descend according to the
descendible quality of the teniu-e (a).



Creation and
transfer of
trust estates.

Statute of
Frauds.



Trusts or equitable estates may be created and passed
from one person to another, without the use of any par-
ticular ceremony or form of words (i). But, by the
Statute of Frauds (c), it is enacted (c?), that no action
shall be brought upon any agreement made upon con-



(/?) Stat. 33 Viet. c. 14, s. 2.

(r) 1 Hale, P. C. 249.

(*•) Ante, p. 57.

(t) Stat. 33 & 34 Vict. c. 23.

(u) Stat. 13 & 14 Vict. c. CO,
repealing stat. 4 & 5 Will. IV.
c. 23, to the same effect.

(x) Stat. 13 & 14 Vict. c. 60,
s. 47.

(y) Ante, p. IIG.



(r) Stat. 37 & 38 Vict. c. 78,
s. 5, passed 7th Aug. 1874.

(«) 1 Sand. Uses, 270 (282, 5th
ed.).



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